gno.law

Johnson v. Carey

Court of Appeals for the Ninth Circuit · 06-56738 · 2011-03-10 · Unpublished

Robert Michael JOHNSON, Petitioner-Appellant, v. Tom L. CAREY and Bill Lockyer, Respondents-Appellees

Proceeding
appeal
Trial court
United States District Court for the Southern District of California
Trial judge
Jeffrey T. Miller (district judge)
Outcome
dismissed — DISMISSED.
Area
civil
Panel
Joseph J. Farris (author), Jay S. Bybee, Edward Leavy

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion

FILED NOT FOR PUBLICATION MAR 10 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROBERT MICHAEL JOHNSON, No. 06-56738 Petitioner - Appellant, D.C. No. CV-05-02012-JTM v. MEMORANDUM * TOM L. CAREY and BILL LOCKYER, Respondents - Appellees.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding Submitted March 8, 2011 ** Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.

California state prisoner Robert Michael Johnson appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Johnson contends that the Board’s 2003 decision to deny him parole was not supported by “some evidence” and therefore violated his due process rights. After briefing was completed in this case, this court held that a certificate of appealability (“COA”) is required to challenge the denial of parole. See Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc). Now the Supreme Court has held that the only federal right at issue in the parole context is procedural, and the only proper inquiry is what process the inmate received, not whether the state court decided the case correctly. See Swarthout v. Cooke, 131 S. Ct. 859, 862-63 (2011). Because Johnson raises no procedural challenges, a COA cannot issue, and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(2).

DISMISSED.

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